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Precedents with drafting notes written by our Professional Support Lawyers, plus selected key precedents from authoritative Butterworths® titles.

Offences and sanctions

Environmental regulators have direct enforcement responsibilities for the investigation of breaches of regulation, and a duty to apply regulatory powers to address offences falling within their remit. The principal environmental regulators are:

Environment Agency (EA)

Natural England

Health and Safety Executive

local authorities

Unless the statute creating a particular offence says otherwise regulators have a power, but not a duty, to prosecute. Regulators are generally bound by the Code for Crown Prosecutors, meaning that a prosecution will proceed only if:

there is enough evidence to provide a 'realistic prospect of conviction against each defendant on each charge, and

where there is a realistic prospect of conviction, it is in the public interest to proceed

Civil sanctions as an alternative to prosecution

Since 4 January 2011, the Environment Agency (EA) in England and Wales has been using new enforcement powers under Environmental Civil Sanctions (England) Order 2010, SI 2010/1157 and Environmental Sanctions (Wales) Order 2010, SI 2010/1821. Natural England will also be able to use the new civil sanctions at a later date.

The first civil sanction involving acceptance of an enforcement undertaking was imposed by the EA in July 2011. It required payment of £21,000 by a London-based engineering and IT business to a recycling scheme to compensate for breaches by the company of packaging waste regulations. Non-compliance stemmed from a misunderstanding of the relevant thresholds. The group registered companies that individually exceeded the thresholds (50 tonnes and £2 million turnover per annum) but failed to register subsidiaries that did not.

Civil sanctions were introduced under Regulatory Sanctions and Enforcement Act 2008, and the orders came into force in England on 6 April 2010 and in Wales on 15 July 2010. EA guidance states that 'the aim of enforcement is to make sure business and industry takes appropriate action to protect the environment, make sure regulations which prevent pollution are complied with and secure better outcomes for the environment, people and business'. The EA may decide to enforce when any of the following occur:

an incident

a breach of the conditions of a permitted activity

non-compliance with legislation

Civil sanctions allow the EA to take action that is 'proportionate to the offence and the offender, and reflect the fact that most offences committed by businesses are unintentional'. The EA can, and will, still use criminal punishments for serious offences. EA guidance indicates that criminal sanctions would be pursued where:

the offending has been intentional, reckless or grossly negligent or involves outright criminal activity

the offending has created serious harm (or has the potential to cause such harm) to the environment or to people

there has been large-scale and protracted non-compliance with regulatory provisions

EA staff have been subject to harassment, alarm, distress or fear of violence, or

the EA has been obstructed in its duties and this obstruction has prevented the investigation of potentially criminal activity

Initially, civil sanctions will be used for offences involving:

harm to water or wildlife

poor drainage, and

waste management (including producer responsibility for packaging)

Other offences will be added by future legislation. The Order specifies which civil sanctions can be used for which offences.

What are the main civil sanctions?

The civil sanctions provided by the 2010 order for each of England and Wales are:

Compliance notice: written notice to take steps to ensure that an offence does not continue or recur

Restoration notice: written notice to restore harm caused by non-compliance

Enforcement undertaking: voluntary agreement by business to take corrective action to make up for non-compliance

Fixed monetary penalty: a low level penalty for minor offences fixed at £100 for an individual and £300 for a company

Variable monetary penalty: a monetary penalty for more serious offences with a maximum of £250,000

Stop notice: written notice to stop an activity which is causing harm

Procedures

Procedures vary from sanction to sanction. In most cases:

the regulator issues a notice of intent to impose the sanction

the recipient can make objections

the recipient can appeal against a civil sanction to an independent tribunal

subject to the appeal, the offender must pay the penalty and/or comply with the terms of the regulator's notice (eg a 'stop notice')

Enforcement

Generally:

legal action will be taken against anyone not paying monetary penalties

anyone not complying with restoration notices or stop notices will usually be prosecuted

The regulator may also seek to recover costs of investigation or legal advice.

Civil sanctions under other statutes

Specific civil penalties are prescribed by other legislation.

In the EU Emissions Trading Scheme, both in relation to stationary installations and aviation, the legislation sets out civil penalties in the form of financial penalties.

In the CRC Energy Efficiency Scheme, the legislation sets out various civil penalties, in the form of:

financial penalties

publication of breach

determination of an annual emissions figure

requirement that extra allowances be surrendered

placement at the bottom of the performance league tables, and

blocking of a registry account

For certain penalties, the imposition of the penalty is mandatory. For others, a power is given to waive or modify the penalty but only in accordance with the limited discretion set out in the legislation.

In relation to the Landfill Allowance scheme, the legislation requires suspected non-compliance to be reported to either the Secretary of State or the Welsh Minister, as appropriate.